GA Supreme Court Upholds Buckner Ruling - Local news, weather, sports Savannah | WSAV On Your Side

GA Supreme Court Upholds Buckner Ruling


 Early Monday, the Georgia Supreme Court published the following ruling:


            The Supreme Court of Georgia has unanimously upheld the ruling by a Chatham County Superior Court judge, dismissing charges against Bobby Lavon Buckner for the 2003 murder, kidnapping and sexual abuse of 12-year-old Ashleigh Moore. The judge had granted Buckner's motion to dismiss the indictment on the ground that prosecutors violated his constitutional right to a speedy trial.

"Upon our review, we cannot say that the trial court clearly erred in its assessment of the relevant facts, and we cannot say that its ultimate conclusion, which appears reasoned and reasonable, amounts to an abuse of discretion," Justice Keith Blackwell writes for the high court. "Accordingly, we must affirm the judgment below."

At the outset, the opinion acknowledges that the trial judge "reluctantly dismissed the indictment" and described the remedy of dismissal as a "harsh one." In her 36-page order, Chatham Superior Court Judge Penny Haas Freesemann wrote: "This Court has struggled with the issues in this motion, not because of the clarity of the law or the undisputed facts of this case, but because the remedy for a violation of the Defendant's Sixth Amendment right [to a speedy trial] is so extreme. As best stated by the United States Supreme Court, the consequence for the violation of a defendant's right to a speedy trial…means ‘that a defendant who may be guilty of a serious crime will go free, without having been tried.' Nonetheless, ‘it is the only possible remedy allowed under the law.'"

According to the facts of this high-profile case, Ashleigh Moore, a 77th grade honor student at DeRenne Middle School, disappeared from her home in the early morning hours of April 18, 2003. Her disappearance prompted an intense search in Savannah and nearby areas of South Carolina. Buckner, her mother's live-in boyfriend, was arrested the next day after law enforcement officers learned he had been alone with Ashleigh and two other children, in violation of a condition of his probation. He later admitted the violation and also pleaded guilty to sex crimes involving four other children. Buckner was subsequently sentenced to 20 years in prison and is currently incarcerated at Calhoun State Prison.

            Nearly three weeks after Ashleigh disappeared, her body was found near the Savannah Marriott Riverfront hotel. In December 2007, a grand jury indicted Buckner for the murder, kidnapping and child molestation of Ashleigh Moore. Buckner was re-indicted in May 2009. The following year, the lead prosecutor resigned from the district attorney's office and the case was re-indicted a third time in March 2011. The case was set for trial for the tenth time in April 2011, but on that date, prosecutors announced for the first time that the state would seek the death penalty and the case was reassigned to another judge, Freesemann. As a death penalty case, it was also reassigned to the Capital Defender's Office and Buckner was appointed two new attorneys, who subsequently filed more than 140 motions. Nearly five months later, in August 2011, the state announced it would not seek the death penalty after all and the trial was reset for February 2012. But in December 2011, Buckner filed his motion to dismiss the indictment, arguing that his Sixth Amendment right to a speedy trial had been violated. On May 30, 2012, Judge Freesemann granted his motion and threw out the charges, nearly four and a half years after Buckner was indicted. Larry Chisolm, the district attorney at the time, then appealed to the state Supreme Court.

            In today's opinion, the high court analyzes Buckner's speedy trial motion as required by the U.S. Supreme Court's 1972 decision in Barker v. Wingo and its 1992 decision in Doggett v. United States. When deciding constitutional speedy trial claims, courts must conduct a two-stage analysis. The first question is whether the interval from arrest or indictment (whichever came first) to trial is sufficiently long to be considered "presumptively prejudicial" – or damaging – to the defendant's case. "Some delay is inevitable, of course, so a court first must consider whether the delay is long enough to raise a presumption of prejudice and to warrant a more searching judicial inquiry into the delay," the opinion says. If the answer to the first question is yes, the trial court must then weigh together four factors: whether the delay was uncommonly long, whether the government or the defendant is more to blame for the delay, whether "in due course" the defendant asserted his right to a speedy trial, and whether he suffered harm or "prejudice" as a result of the delay.

            Here, the state acknowledged that the delay was long enough to be "presumptively prejudicial," requiring analysis of the four factors. Today's opinion considers each factor, starting with its finding that the trial court properly determined that a 53-month delay between indictment and the order granting the motion to dismiss the charges was "uncommonly long." The trial court therefore weighed the first factor against the state. In considering the second factor, the trial court found that much of the delay was due to the negligent inaction of the prosecutors or the reassignment of the case from one prosecuting attorney to another. The judge weighed these portions of the delay "benignly" against the state, the opinion says. But it weighed the 10-month delay following the state's decision to seek the death penalty "more heavily against the state."

            "The State's explanation for the significantly delayed decision to seek the death penalty fails to persuade us that the trial court was unreasonable in its assessment of the delay occasioned by that decision," today's opinion says. "The trial court appears to have thought that someone in the office of the prosecuting attorney ought to have carefully reviewed the case file long before December 2010, and that it should have occurred to someone in that office long before March 2011 that the death penalty perhaps ought to be sought. Such thoughts are not unreasonable ones. After all, in a case like this one – involving a convicted sex offender accused of murdering, kidnapping, and sexually abusing a child – the idea that the death penalty perhaps might be warranted is hardly a novel one."

            The trial court also did not abuse its discretion in weighing the third factor heavily against Buckner, yet not as heavily as it would have had prosecutors not regularly failed to turn over information demanded by the defense during the discovery process. And, the high court says, the evidence supported the trial court's finding that people had tampered with evidence in Ashleigh's bedroom. The delay damaged Buckner's ability to defend his case because witnesses could no longer recall the details related to the tampering.

            "Finally, we must review the way in which the trial court balanced the four Barker-Doggett factors," the opinion concludes. "The trial court concluded that although Buckner's late assertion of his right to a speedy trial ‘weighs significantly' against him, the other factors all weigh against the State, and on balance, the relevant factors indicated that Buckner had been denied his right to a speedy trial."

Attorneys for Appellant (State): Larry Chisolm, District Attorney (former), David Perry, Chief Asst. D.A., Diane McLeod, Dep. Chief Asst. D.A., Samuel Olens, Attorney General, Paula Smith, Sr. Asst. A.G.

Attorneys for Appellee (Buckner): Newell Hamilton, Jason Clark, Amy Ihrig


  Chatham County's new district attorney Meg Heap says it's doubtful anything can be done to file new charges against Buckner. She does plan to ask State Attorney Sam Olens to review the case for possible appeal to the U. S. Supreme Court but admits that is a long shot. "This is extremely sad, a 12 year old girl is dead," she said.  We'll have more tonight on News 3 On Your Side at 6.

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